Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued (sovereign immunity). Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. Foreign governments enjoy immunity from suit (state immunity) as provided in the Foreign Sovereign Immunities Act. This principle is commonly expressed by the popular legal maxim "rex non potest peccare," meaning "the king can do no wrong."[1]

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit.[2] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[3] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[4]

The principle was not mentioned in the original United States Constitution. The courts have recognized it both as a principle that was inherited from English common law, and as a practical, logical inference (that the government cannot be compelled by the courts because it is the power of the government that creates the courts in the first place).[5]

The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both.[which?] Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

In Federal tax refund cases filed by taxpayers (as opposed to third parties)[6] against the United States, various courts have indicated that Federal sovereign immunity is waived under subsection (a)(1) of 28 U.S.C.§ 1346 in conjunction with Internal Revenue Code section 7422 (26 U.S.C.§ 7422), or under section 7422 in conjunction with subsection (a) of Internal Revenue Code section 6532 (26 U.S.C.§ 6532).[7] Further, in United States v. Williams, the U.S. Supreme Court held that in case where an individual paid a federal tax under protest to remove a federal tax lien on her property where the tax she paid had been assessed against a third party, the waiver of sovereign immunity found in 28 USC section 1346(a)(1) authorized her tax refund suit.[8]

Congress has also waived sovereign immunity for patent infringement claims under 28 USC § 1498(a), but that statute balances this waiver with provisions that limit the remedies available to the patent holder. The government may not be enjoined from infringing a patent, and persons performing work for the government are immune both from liability and from injunction. Any recourse must be had only against the government in the United States Court of Federal Claims. In Advanced Software Design v. Federal Reserve Bank of St. Louis, the Federal Circuit expanded the interpretation of this protection to extend to private companies doing work not as contractors, but in which the government participates even indirectly.

The 1793 Supreme Court case Chisholm v. Georgia confirmed that Article III, § 2 which granted diversity jurisdiction to the federal courts, allowed lawsuits "between a State and Citizens of another State" as the text reads. In 1795, the Eleventh Amendment was ratified in response to this ruling, removing federal judicial jurisdiction from lawsuits "prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State". The validity of and retroactivity of the Eleventh Amendment was affirmed in the 1798 case Hollingsworth v. Virginia.

we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention." States may consent to suit, and therefore waive their Eleventh Amendment immunity by removing a case from state court to federal court. See Lapides v. Board of Regents of University System of Georgia.

(Citations omitted). In Alden v. Maine, the Court explained that while it has

sometimes referred to the States’ immunity from suit as "Eleventh Amendment immunity[,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."

The federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments. Generally speaking, Native American tribes enjoy immunity from suit—in federal, state, or tribal courts—unless they consent to suit, or unless the federal government abrogates that immunity.[9] However, individual members of the tribe are not immune. Under certain circumstances, a tribal official acting in his or her official capacity, and within the scope of his or her statutory authority, may be cloaked with sovereign immunity. But if a tribal official's tortious acts exceed the scope of his or her authority, the official is subject to suit for those acts. See Cosentino vs. Fuller, Cal. Ct. App. (May 28, 2015).

The Foreign Sovereign Immunities Act (FSIA) of 1976 establishes the limitations as to whether a foreign sovereign nation (or its political subdivisions, agencies, or instrumentalities) may be sued in U.S. courts—federal or state. It also establishes specific procedures for service of process and attachment of property for proceedings against a Foreign State. The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. In international law, the prohibition against suing a foreign government is known as state immunity.

Counties and municipalities are not entitled to sovereign immunity. In Lincoln County v. Luning, 133 U.S. 529 (1890), the Court held that the Eleventh Amendment does not bar an individual's suit in federal court against a county for nonpayment of a debt. (By contrast, a suit against a statewide agency is considered a suit against the state under the Eleventh Amendment. See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945)). In allowing suits against counties and municipalities, the Court was unanimous, relying in part on its "general acquiescence" in such suits over the prior thirty years. William Fletcher, a professor of legal studies at Yale University, explains the different treatment on the ground that in the nineteenth century, a municipal corporation was viewed as more closely analogous to a private corporation than to a state government. Fletcher, note 2.

County and municipal officials, when sued in their official capacity, can only be sued for prospective relief under Federal law.[10] Under state law, however, the Court in Pennhurst noted that even without immunity, suits against municipal officials relate to an institution run and funded by the state, and any relief against county or municipal officials that has some significant effect on the state treasury must be considered a suit against the state, and barred under the doctrine of sovereign immunity.

If the state or local government entities receive federal funding for whatever purpose, they cannot claim sovereign immunity if they are sued in federal court for discrimination. The United States Code, Title 42, Section 2000d-7 explicitly says this.

The Supreme Court decision of Board of Trustees of the University of Alabama v. Garrett seems to nullify this; however, numerous appellate court cases, such as Doe v. Nebraska in the 8th Circuit[11] and Thomas v. University of Houston of the 5th Circuit[12] have held that, as long as the state entity receives federal funding, then the sovereign immunity for discrimination cases is not abrogated, but voluntarily waived. Since the receiving of the federal funds - such as FAFSA and affirmative action - was optional, then the waiver of sovereign immunity was optional. If a state entity wanted its sovereign immunity back, all they have to do in these circuits is stop receiving federal funding.

However, the 2nd Circuit does not share this ideal.[13] Currently, they are the only federal court of appeals to take this approach to the issue.[14]

Because the U.S. is a superior sovereign, it may need to bring suit against a state from time to time. According to the Supreme Court, proper jurisdiction for a contract suit by the United States Federal Government against a state is in Federal District Court.[16]

Similar to the U.S. v. State exclusion above, a state may also sue another state in the federal court system. Again, there would be a conflict of interest if either state's court system tried the case. Instead, the federal court system provides a neutral forum for the case.

Under Article III, Section 2 of the United States Constitution, the Supreme Court of the United States has original jurisdiction over cases between states. Congress, if it so chooses, may grant lower federal courts concurrent jurisdiction over cases between states. However, Congress has not yet chosen to do so. Thus, the United States Supreme Court currently has original and exclusive jurisdiction over cases between state governments.

Suits filed against state officials under the "stripping doctrine"[edit]

This article appears to contradict the article Qualified immunity. Please see discussion on the linked talk page. Please do not remove this message until the contradictions are resolved.(June 2014)

The "stripping doctrine" permits a state official who used his or her position to act illegally to be sued in his or her individual capacity.[17] In other words, once public officials have acted illegally, they are theoretically stripped of their position's power and are eligible to be sued as individuals. However, the government itself is still immune from being sued through respondeat superior.[18] The Court has openly called this "stripping doctrine" a legal fiction.[19] Therefore, a citizen may sue an official under this "stripping doctrine" and get around any sovereign immunity that that official might have held within his or her position within a state.

When a citizen uses this exception, they can't include the state in the suit: they have to list specifically the official's name. They also can't seek damages from the state, because they can't list the state as a party. However, the citizen can seek prospective, or future, relief by asking the court to direct the future behavior of the official.[20]

For example, Ex parte Young allows federal courts to enjoin the enforcement of unconstitutional state (or federal) statutes on the theory that "immunity does not extend to a person who acts for the state, but [who] acts unconstitutionally, because the state is powerless to authorize the person to act in violation of the Constitution." Althouse, Tapping the State Court Resource, 44 Vand. L. Rev. 953, 973 (1991). Pennhurst State School and Hospital v. Halderman (465 U.S.) ("the authority-stripping theory of Young is a fiction that has been narrowly construed"); Idaho v. Coeur d'Alene Tribe of Idaho ("Young rests on a fictional distinction between the official and the State"). The Young doctrine was narrowed by the court in Edelman v. Jordan, which held that relief under Young can only be for prospective, rather than retrospective, relief; the court reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit. Prospective relief includes injunctions and other equitable orders, but would rarely include damages. This limitation of the Young doctrine "focused attention on the need to abrogate sovereign immunity, which led to the decision two years later in Fitzpatrick." Althouse, Vanguard States, supra, at 1791 n.216

For more details, "constitutional torts" 42 U.S.C. § 1983 allows state officials to be sued in their individual or official capacities, a principle which was demonstrated again in Brandon v. Holt, 469 U.S. 464 (1984).

Suits as to which Congress has abrogated the states' Eleventh Amendment immunity[edit]

The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs[citation needed], of government employees. The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. See Brandon v. Holt.

Because Congress' power under §5 is only "the power 'to enforce,' not the power to determine what constitutes a constitutional violation," for the abrogation to be valid, the statute must be remedial or protective of a right protected by the Fourteenth Amendment and "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," City of Boerne v. Flores. But "[t]he ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch." Kimel v. Florida Board of Regents. Simply put: "Under the City of Boerne doctrine, courts must ask whether a statutory remedy has 'congruence and proportionality' to violations of Section 1 rights, as those rights are defined by courts." Althouse, Vanguard States, Laggard States: Federalism & Constitutional Rights, 152 U. Pa. L. Rev. 1745, 1780 (2004)

To the surprise of many observers, however, the Court has found that somewhat different rules may apply to Congressional efforts to subject the states to suit in the domain of federal bankruptcy law. In Central Virginia Community College v. Katz, the Court held that state sovereign immunity was not implicated by the exercise of in rem jurisdiction by bankruptcy courts in voiding a preferential transfer to a state. Justice Stevens, writing for a majority of five (including Justice O'Connor, in one of her last cases before retirement, and Justices Souter, Ginsburg, and Breyer), referred to the rationale of an earlier bankruptcy decision, but relied more broadly on the nature of the bankruptcy power vested in Congress under Article I. "The question", he stated, "[was] not whether Congress could 'abrogate' state sovereign immunity in the Bankruptcy Act (as Congress had attempted to do); rather, because the history and justification of the Bankruptcy Clause, as well as legislation enacted immediately following ratification, demonstrate that [the Bankruptcy Clause] was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena." In reaching this conclusion, he acknowledged that the Court's decision in Seminole Tribe and succeeding cases had assumed that those holdings would apply to the Bankruptcy Clause, but stated that the Court was convinced by "[c]areful study and reflection" that "that assumption was erroneous". The Court then crystallized the current rule: when Congressional legislation regulates matters that implicate "a core aspect of the administration of bankrupt estates", sovereign immunity is no longer available to the States if the statute subjects them to private suits.

It is worth noting that the Court in Central Virginia Community College v. Katz added this cryptic caveat to their holding: "We do not mean to suggest that every law labeled a 'bankruptcy' law could, consistent with the Bankruptcy Clause, properly impinge upon state sovereign immunity". It is quite possible the Court has anticipated a significant narrowing of the doctrine.

If a defendant can demonstrate that the government's action was done in bad faith, they can receive damages despite sovereign immunity. Typically if a defendant can demonstrate that the government intentionally acted wrongly with the sole purpose of causing damages, they can recover for injury or economic losses. For example, if access lanes to a major bridge are closed for repair and results in severe traffic congestion, the action was in good faith and the state couldn't be sued. However, if, as in the Fort Lee lane closure scandal, the lanes were closed in possible yet not proven retaliation against a mayor who declined to support a politician's campaign, with the explicit purpose of causing traffic jams, such lawsuits could proceed.[21]

^United States v. Williams, 514 U.S. 527 (1995). However, in the case of a wrongful levy (rather than an action to remove a tax lien), the Supreme Court held in 2007 that the injured party's remedy would be limited to Internal Revenue Code section 7426(a)(1), and not in section 1346(a)(1) of title 28. See EC Term of Years Trust v. United States, 127 S. Ct. 1763 (2007).